Opinion
Civil Action No. 3:98CV-400-S.
January 24, 2000
MEMORANDUM OPINION
This matter is before the Court on motion of the defendant, Kosair Children's Hospital ("Kosair"), for summary judgment. In this case, the plaintiff, Laura E. Thompson ("Thompson"), claims discrimination, retaliation, and constructive discharge in her employment with Kosair. For the reasons set forth below, the defendant's motion will be granted.
FACTS
In 1995, Kosair employed Thompson as a technologist in the radiology department. The department uses essentially four types of equipment: (1) standard radiology equipment (X-Rays), (2) CAT-Scans (CTs), (3) Ultra-Sounds, and (4) Magnetic Resonance Imaging (MRIs). Thompson was trained and certified in X-Ray. In November 1996, a CT technologist notified Kosair management of her need for maternity leave beginning in June 1997. In response, Kosair planned for cross training in the CT area to begin in January 1997 for all those interested technologists. Thompson and another technologist, Mary Boykin ("Boykin"), were originally scheduled to begin training in January. According to Kosair, because of the cost involved in training and the expense of having an additional employee to cover for the employee being trained, it decided that only one employee would be cross-trained at a time.
Thompson took a medical leave of absence from January 10, 1997 through March 1997. Because this created a further staff shortage for Kosair, Boykin could not begin her CT training until March 17, 1997. Once Boykin completed her training in mid-June 1997, Kosair decided to postpone cross-training due to budget constraints. Kosair discussed this decision with all members of the department, including Thompson. When cross-training was recommenced in September 1998, Thompson and another employee were the first selected to participate. This training continued until October 1998 when Thompson resigned from Kosair.
In November 1997, Thompson filed a Charge of Discrimination with the E.E.O.C. that alleged:
On or about June 15, 1997, my name was removed from the training schedule for the position of C.T. Technician. I found out on or about August 15, 1997, that I would not be trained for the position or allowed to fill the position. I believe that I have been discriminated against due to my age, fifty (50), in violation of the Age Discrimination in Employment Act.
The E.E.O.C. responded that it was unable to conclude that the information obtained violated the statutes and issued a Notice of Right to Sue. Thompson initially sued Kosair and a number of its employees; however, by Order dated August 25, 1998, this Court dismissed all individual defendants. In her Second Amended Complaint, Thompson alleges:
(1) that Kosair discriminated against her in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et. seq.;
(2) that Kosair discriminated against her in violation of the disability provisions of the Kentucky Civil Rights Act, ("KCRA"), KRS 344.010, et. seq.;
(3) that Kosair retaliated against her in violation of provisions of the KCRA, KRS 344.280(1) and 344.450;
(4) that Kosair violated KRS 337.355 and KRS 337.365 by failing to provide her lunch breaks or rest periods on various occasions;
(5) that Kosair constructively discharged her.
STANDARD OF REVIEW
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party's failure to establish an element of proof essential to his case and upon which he will bear the burden of proof at trial constitutes a failure to establish a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION A. The ADEA Claim
In Thompson's Response to Kosair's Motion for Summary Judgment, she concedes that the facts do not support her claim for age discrimination. Thompson further states that she has no objection to the dismissal of this claim. Therefore, Kosair's Motion for Summary Judgment on the ADEA claim will be granted.
B. The Disability Discrimination Claim
Thompson alleges that she is a "qualified individual with a disability," pursuant to KRS 344.030(1) as she suffers from a condition known as ". . . hypoglycemia but could, with a reasonable accommodation, as defined by KRS 344.030(1), completely fulfill all of her duties as a radiology technician for the Defendant without danger to her life or health." She further alleges that during 1998, Kosair ". . . failed or refused to reasonably accommodate the Plaintiff's need for regularly scheduled snack and meal breaks, which are necessary to control her condition . . ."
Kosair acknowledges that, on rare occasions, breaks and lunches may be missed by its radiology employees. Kosair argues that delayed or omitted breaks are common in all departments within a hospital due to the fact that emergency patients, especially children, require immediate assistance. Kosair further argues that when its management was informed of Thompson's need for an accommodation, it immediately responded and removed her from all operating room duties until Thompson complained about the removal and demanded return to that assignment.
According to deposition testimony of Thompson's physician, Dr. Gavin, Thompson has a borderline condition of hypoglycemia which can be easily controlled, when she misses a break or lunch period, through her eating small snacks. Kosair argues that Thompson does not have a disability covered by the Americans with Disabilities Act, 29 U.S.C. § 12101, [ 42 U.S.C. § 12101] et. seq. ("ADA"), as defined by recent Supreme Court opinions, i.e. an impairment which substantially limits a major life activity of an individual. We agree.
Because Kentucky modeled its Civil Rights Act after Title VII and the ADA, the interpretation of both the federal and state statutes is substantially identical. See Gafford v. General Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993).
Examples of major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2(i). Even assuming Thompson's condition affects the major life activity of working as a radiology technician, this activity is not substantially limited so as to qualify her for disability status. In Sutton, et. al. v. United Air Lines, Inc., ___ U.S. ___, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Supreme Court held that "[t]o be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Id. at 2151.
Thompson's own physician has testified that her condition is "borderline" and easily controlled through her own efforts. Furthermore, it is undisputed that Thompson became employed as a radiology technician in a physician's office within a couple of months after she quit her employment with Kosair. Therefore, Thompson is not substantially limited in the major life activity of working as a radiology technician and is not a qualified individual with a disability under the KCRA.
C. The Kentucky Workplace Breaks Claim
Thompson has further alleged that Kosair has violated KRS 337.355 and KRS 337.365 in failing to provide lunch periods and breaks to its technicians. Kosair concedes that on rare occasions, when emergency patient care is required or infants and other young patients must have procedures performed, lunch and breaks may be omitted. Accordingly, Kosair has a code in its electronic time recording system to pay those employees who are unable to take their lunch breaks.
Kosair argues that these claims are not properly before this Court because Thompson has not followed the administrative prerequisites of KRS Chapter 337. Kosair argues that because KRS Chapter 337 does not provide the Kentucky courts of general jurisdiction, i.e. its Circuit Courts, with original jurisdiction in these matters, this Court cannot assume jurisdiction that a state court lacks on a purely state law issue. We agree with Kosair that this Court lacks jurisdiction over these claims.
In Early v. Campbell County Fiscal Ct., 690 S.W.2d 398 (Ky.Ct.App. 1985), the Court examined when jurisdiction attached to the Campbell County, Kentucky Circuit Court under KRS Chapter 337. The Court held that ". . . although the Circuit Court is a court of competent jurisdiction referred to in KRS 337.385(1), it is not one of original jurisdiction. Its `competent jurisdiction' does not attach until after the Labor Commissioner has conducted his own proceeding, i.e. it is involved only in review, not initial resolution." Id. at 399. Furthermore, the introductory language of 803 KAR 1:035 states: "KRS 337.310 requires the Commissioner of Workplace Standards, Labor Cabinet, to decide all questions of fact arising under KRS 337.020 to KRS 337.405."
Thompson argues that the Court's holding in Early applied only to wage disputes and not workplace breaks claims brought under KRS 337.355 and KRS 337.365. According to 803 KAR 1:035 and KRS 337.310(1), however, all claims brought pursuant to any provision from KRS 337.020 through KRS 337.405, must first be brought before the Labor Cabinet to resolve questions of fact. Thus, Thompson's claims also must first be brought before the Labor Cabinet Commissioner.
She further argues that her workplace claims are actionable pursuant to KRS 446.070. Because KRS 446.070 does not require administrative prerequisites, Thompson contends that this claim is properly before this Court. In Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985), the Kentucky Supreme Court held that "[u]nder KRS 446.070, a person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation. But this is limited to where the statute is penal in nature, or where by its terms the statute does not prescribe the remedy for its violation." Id. at 401 (citing Hackney v. Fordson Coal Co., 230 Ky. 362, 19 S.W.2d 989 (Ky. 1929)). The Court went on to state that "[w]here the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute." Id.
KRS 337.990 clearly specifies the civil penalties for violations of any of the provisions of KRS Chapter 337. Therefore, under Grzyb, KRS 446.070 is not applicable and Thompson must look to KRS Chapter 337 alone for the proper remedy. Thompson has not followed the administrative prerequisites of KRS Chapter 337, and this Court therefore does not have jurisdiction over her Kentucky wage and hour claims. Additionally, Thompson seeks damages pursuant to KRS 337.990(14). KRS 336.385 states that only the Commissioner of Labor has the power to seek imposition of any penalty under KRS Chapter 337. Accordingly, Kosair's Motion for Summary Judgment on Thompson's claims under KRS 337.355 and KRS 337.365 will be granted.
D. The Retaliation and Constructive Discharge Claims
Thompson claims her supervisors and co-workers retaliated against her in violation of the KCRA because she filed the E.E.O.C. complaint regarding age discrimination, and that this retaliation continued after Thompson complained about not being permitted to take breaks. In order to establish a prima facie case for retaliation, Thompson must prove that: (1) she engaged in protected activity; (2) she was subsequently subjected by her employer to adverse employment action; and (3) a causal link existed between the two events. See Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987).
It is undisputed that Thompson's actions for which she alleges that Kosair retaliated against her are protected activities. Thompson has failed to establish a prima facie case of retaliation, however, because she has failed to prove that Kosair took any adverse employment actions against her. Thompson has never been terminated, demoted, or given reduced compensation. In fact, when Thompson made her decision to quit, both of the department's managers tried to dissuade her.
As an example of an adverse action, Thompson alleges that her co-workers and Kosair management were "uncivil, rude, and cool" toward her after she filed the E.E.O.C. complaint. The activities of co-workers which are not attributable to the employer, however, cannot result in liability against the employer. See Little v. United Techs., 103 F.3d 956, 959-60 (11th Cir. 1997). The attitudes of Thompson's co-workers cannot be attributed to Kosair because there is no evidence that Kosair management had knowledge of this behavior, and the alleged conduct was never reported or complained about to management.
Thompson also alleges that management interfered with her cross-training opportunity in retaliation for her protected activities. It is undisputed that Thompson was the first employee asked to cross-train after Kosair lifted the suspension. This delay does not constitute an adverse employment action.
Additionally, Thompson points to her assignment to the Operating Room as evidence of retaliation because she was less likely to receive breaks when assigned to that location. Reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims. See Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir. 1996). Thompson's assignment to the Operating Room was not a materially adverse change in the terms of her employment. Furthermore, when Thompson was assigned to non-operating room duties, she complained and demanded return to the Operating Room.
Finally, Thompson argues that Kosair constructively discharged her and that this constructive discharge constituted an adverse employment action in retaliation for her protected activities. In order to maintain an action for constructive discharge, Thompson must show that "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir. 1982) (quoting Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980)). It is undisputed that Kosair management tried to dissuade Thompson from quitting. Despite that fact, however, Thompson alleges that Kosair management constructively discharged her by condoning and encouraging Thompson's co-workers to be hostile toward her. Thompson has no support for the allegation that management had any part in the alleged hostility of her co-workers. Furthermore, any hostility on the part of Thompson's co-workers is likely to have resulted from Thompson originally naming them as defendants in this lawsuit. These unsupported accusations do not create a genuine issue of material fact with regard to her claims for constructive discharge or retaliation. See Ward v. City of Streetsboro, 89 F.3d 837, 1996 WL 346812 at *6 (6th Cir. June 24, 1996).
Thompson has produced no evidence other than her own unsupported allegations which shows that the hospital discriminated or retaliated against her. Thompson's conclusory assertions alone are insufficient to survive Kosair's Motion for Summary Judgment. Accordingly, Kosair's Motion for Summary Judgment will be granted.
ORDER
Motion having been made by the defendant, Kosair Children's Hospital, for summary judgment, and for other reasons set forth in the memorandum opinion entered herein this date, and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the defendant's motion is GRANTED.
IT IS SO ORDERED this 24th day of January, 2000.